Summary: Mr and Mrs X complained the Council delayed completing their adult son Mr S’s needs assessment and care and support plan. The Council was at fault for the delay. It was also at fault for the restrictions it placed on the way they could use the respite budget. There was no fault in the way it set the level of budget or in the support provided to Mr and Mrs X to manage the direct payments. It has agreed to apologise to Mr and Mrs X and pay them £250 to acknowledge the frustration caused

The complaint

1. Mr and Mrs X complain the Council delayed completing their adult son Mr S’s needs assessment and care and support plan, causing distress and frustration. In addition, they complain the Council has failed to meet Mr S’s needs as the respite payment is insufficient to cover the respite costs and there is no provision within the support plan to fund activities, causing Mr S additional unnecessary expense.
2. Mr and Mrs X also complain the Council is failing to support them as employers to manage the direct payments. It has stopped the previous advice function it provided through a company and has not provided any alternative service to ensure they are properly supported to manage the direct payments. This is causing them worry and distress.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

5. I have considered the information provided by Mr and Mrs X in writing and over the telephone. I have considered the Council’s response to my enquiries, the relevant law and guidance and our guidance on remedies.
6. I gave Mr and Mrs X and the Council the opportunity to comment on a draft of this decision. I considered their comments in reaching a final decision.

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What I found

Legal and administrative background

7. Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved
8. The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has. The support plan may include a personal budget which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
9. Councils must take into consideration a person’s preferences. However, recent case law (R (Davey) v Oxfordshire County Council) found while a claimant’s preferences had to be taken into account, these had to be distinguished from their needs for care. The court of appeal found the Council’s duty is not to achieve the outcomes which the individual wishes to achieve but to assess whether the provision of care and support would contribute to those outcomes. The wishes of the individual may be a primary influence, but they do not amount to an overriding consideration.
10. The personal budget gives the person clear information about the money allocated to meet the needs identified in the assessment and recorded in the care and support plan.
11. There are three main ways in which a personal budget can be administered:
• As a managed account held by the local authority with support provided in line with the person’s wishes;
• As a managed account held by a third party (often called an individual service fund or ISF) with support provided in line with the person’s wishes;
• As a direct payment. (Care and Support Statutory Guidance 2014)
12. Direct payments are monetary payments made to individuals who ask for one to meet some or all of their eligible care and support needs. They provide independence, choice and control by enabling people to commission their own care and support to meet their eligible needs. The local authority has a key role in ensuring that people have relevant and timely information about direct payments so they can decide whether to request them. If they do so, the Council should support them to use and manage the payment properly.
13. “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).

What happened

14. Mr S lives at home with Mr and Mrs X. He has learning difficulties and physical health conditions. He has received direct payments, which are managed on his behalf by Mr and Mrs X, since 2009. They employ carers to support Mr S. Mr and Mrs X use a payroll company to manage the direct payments.
15. Respite care is care provided to give a carer time away from caring for an adult with care and support needs. In April 2018, the Council told Mr and Mrs X it needed to reassess Mr S to release funding for respite care. It would assess this on a year by year basis to see if there was a continued need for respite care. Mr S had previously received a set amount for respite via his direct payments. A social worker started the assessment but went on long term leave. The Council allocated Mr S a new social worker in October 2018.
16. In October 2018 Mr and Mrs X met with the social worker to review Mr S’s needs’ assessment and support plan. Mrs X requested respite.
17. Following this the social worker arranged a continuing health care meeting to assess Mr S’s health needs. The assessment noted Mr and Mrs X provided a significant amount of support to Mr S. Mr S received formal support through the day with personal care and 1:1 support to attend activities. The assessment also noted that Mr S’s health conditions impacted on his access to services and respite due to his susceptibility to infection. It noted respite was required and ‘options for respite are being explored to enable [Mr and Mrs X] to get a break from their caring responsibilities’.
18. In February 2019 Mrs X called the Council for advice on the respite policy. Mrs X said the usual way of managing respite was not suitable for Mr S. For respite a carer would either come and stay with Mr S or would take him away and this was funded by a lump sum. She also noted the direct payments document referenced activities which may be funded through direct payments. Mrs X felt Mr S’s activities should be funded.
19. A Council manager visited Mr and Mrs X in late February 2019 to discuss the direct payments policy. Mrs X queried whether the Council would fund Mr S’s gym/swimming. The manager advised the cost of Mr S’s swimming/gym membership would probably be a health rather than social care need. Mr and Mrs X advised they had used some of the direct payments for Mr S to go away with a personal assistant and to pay for the personal assistant accommodation costs. The manager explained this was not permitted and the Council would not fund the hotel costs. The manager explained that a residential home with en-suite facilities could meet Mr S’s needs.
20. In March 2019 the social worker drafted a support plan. The social worker met with Mr and Mrs X in April 2019 to go through the assessment and support plan before they put it forward for approval. Mr and Mrs X requested back payment for respite taken over the previous 12 months. The social worker reiterated the payments could only be used to pay for the care and not the hotel rooms.
21. In May 2019 the social worker sought approval of the support plan. This included funding for respite based on an hourly rate/overnight support rate for carers. The Council’s funding panel raised questions about the cost of respite. It asked the social worker to explore the cost of other respite options. Mrs X emailed the Council in May 2019. She was concerned the needs assessment and support plan were put forward for approval but had yet to be agreed with themselves. The social worker explained they had put forward to maintain the current package with the addition of direct payments for respite.
22. Mrs X emailed the Council with a breakdown of the respite costs spent over the previous 12 months.
23. The Council manager visited Mr and Mrs X in June 2019. The manager reiterated the Council would not pay admission fees for activities. They also provided advice on the rates the Council would fund for personal assistants. The manager noted the difficulty in sourcing care in the area and that was particularly an issue in sourcing respite.
24. Mr and Mrs X complained to the Council in July 2019 about the delay in the assessment and care plan and the subsequent delay in receiving money for Mr S’s respite. The shared lives service had confirmed it could not provide respite care and Mrs X sought guidance on the available alternatives. They provided information to show Mr X had spent £3848.67 on respite stays, using surplus from Mr S’s direct payments. Mrs X says there is a surplus due to difficulties in finding carers in the area and the restrictions imposed by the Council on the carers they can use. They say Mr S cannot use Council respite provision as he has a weakened immune system, making him more vulnerable to infections and therefore unable to share bathroom and toileting facilities.
25. The social worker emailed Mrs X in June 2019. They said they were requesting back payments for Mr S’s respite care for 2018/19. This would cover the care costs but not the accommodation costs for the carer. They set out the respite options available which included an in-house residential option with a private bathroom. They said it may be possible to offer direct payments for respite based on the equivalent cost of the in-house option.
26. The Council apologised for the delay in completing the care and support plan which meant Mr S had not received his money for short breaks for 2018/19. The council provided a budget of £2124 (6 weeks at £354 per week) for respite care. The Council considered Mr S’s respite costs broke down into £1238.67 for hotel costs and £2,610 for care costs. It agreed to pay the care costs. It did not consider it had a duty to fund general expenses like the cost of a hotel or travel when someone goes on holiday. It said holiday costs should be paid from Mr S’s income. It said the reassessment was completed in November 2018 and the support plan drafted in March 2019. The Council accepted there was a delay in completing Mr S’s support plan. It said this was due to difficulties in securing services in the area to meet Mr S’s needs. It explained Mr S cannot use his direct payments towards the cost of hotels as part of a respite stay.
27. Mr and Mrs X remained unhappy. They queried when the assessment was completed as the assessment they received said it was completed in April 2019. Also, they had not seen a support plan or indicative budget. Mr and Mrs X met with Council officers in August 2019 to discuss direct payments and care and support.
28. In August 2019 the social worker emailed a copy of the care and support plan to Mr and Mrs X which set out his indicative budget. This included £3416 a year for respite (£65.70 a week).
29. In September 2019 the Council wrote to Mr and Mrs X. It said the needs assessment was completed in November 2018. It said it then went through the quality assurance process and was kept open whilst support planning was progressed. It said it understood the support plan and indicative budget had now been sent to Mr and Mrs X.
30. The Council reassessed Mr S’s needs in September 2019 in relation to respite care for 2019/20. The assessment set out a requirement for four weeks respite per year (28 days) allowing for regular four-night breaks. It assessed the respite options available. It identified an inhouse provision with an en-suite bathroom as the most cost-effective option that could meet Mr S’s needs. The Council calculated the budget based on the cost of this in-house respite. The Council also agreed to pay Mr and Mrs X for two hours support each week to manage the direct payments.
31. In October 2019 the Council approved Mr S’s support plan. Mr and Mrs X received a copy of the plan in November 2019. They remained unhappy with the delays and complained to the Ombudsman.
32. In January 2020 the Council reviewed Mr S’s support plan for the 20/21 financial year. It agreed to fund respite as per the previous year to support Mr and Mrs X in maintaining their caring role.

Findings

33. The Council delayed carrying out a reassessment of Mr S’s needs. This is fault. The main purpose of the reassessment was to provide respite for Mr and Mrs X. Mr S continued to receive his regular direct payments for carer support but not for respite. His support plan was not drafted until March 2019. This meant Mr and Mrs were not given funding for respite care for Mr S for the 2018/19 financial year. Mr and Mrs X did not miss out on respite care because they were able to use the surplus within Mr S’s budget to fund this. However, the delay caused frustration and uncertainty to Mr and Mrs X.
34. The respite budget for 2019/20 was not set until September 2019, over half way through the year. This delay is fault.
35. The Council has calculated the cost of respite based on the equivalent cost of its in-house provision. The in-house provision identified by the Council has en-suite facilities and the Council is satisfied it could meet Mr S’s needs. The Council is entitled to consider best value in setting the personal budget. The funding is sufficient to meet Mr and Mrs X’s need for respite. The Council is not at fault for the way it calculated the budget. Mr and Mrs X have chosen to receive this as direct payments.
36. The purpose of respite is to provide a break from caring responsibilities for Mr and Mrs X. This can be achieved by employing carers to support Mr S at home while they go away or through a respite stay. The Council has said Mr and Mrs X cannot use the direct payments to fund hotels for respite. This is fault. Direct payments are designed to give people more choice and flexibility. Mr S is limited in the Council respite provision he can use and is using the respite budget to successfully meet the identified need for respite. Whilst the Council is not at fault for setting the budget at the level of a residential setting it has identified, it should not limit Mr S to using it in that setting. This is not in the spirit of personalised care set out in the Care Act. Mr S should be free to use it for hotels as long as this is to meet the need for respite, is within the budget set and, if not, he is willing to meet any costs above the respite rate set by the Council.
37. Mr S’s care plan includes carer support to enable him to access activities in the community. Mr S’s support plan to does not set out that he has a need for specific activities within the community, rather that he enjoys and benefits from a range of activities. He needs support for his mobility and ensuring his safety, to source and plan activities, 1:1 background support at activities and for personal care. The Council has provided Mr S with sufficient budget for 1:1 support to access his activities and the community. The Council is not at fault.
38. Mr and Mrs X previously received advice on managing direct payments and employment advice from a company employed by the Council. The Council now provides this advice in-house. The notes show a Council manager has met with Mr and Mrs X on two occasions to discuss direct payments. Mr and Mrs X are also now receiving a payment to recognise the time they spend managing the direct payments. The Council has provided advice and support and is not at fault. The Council says advice and assistance on employment matters can also be sought via the employment insurance provider.

Agreed action

39. Within one month of the final decision on this complaint the Council has agreed to pay Mr and Mrs X £250 to acknowledge the frustration and distress caused by the Council’s delays in completing Mr S’s needs assessment and support plan.
40. Within two months of the final decision it has agreed to review its processes to ensure service users are not left without funding for respite when there are delays in support planning.
41. Within two months of the final decision the Council has agreed to remind staff that direct payments can be used flexibly to meet eligible needs in line with the statutory guidance.

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Final decision

42. I have completed my investigation. There was fault by the Council causing injustice, which the Council has agreed to remedy.

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Investigator's decision on behalf of the Ombudsman